ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 45 of 2017
Applicant: Dr. Yahya Younus s/o. Haji Younus
Through Mr. Muhammad Tariq, Advocate.
Respondent: The State, through Mr. Muhammad Javed K.K.,
Assistant Attorney General.
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Date of hearing: 23.02.2017
Date of order: 23.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused Dr. Yahya Younus s/o. Haji Younus seeks post-arrest bail in Crime No. 10 of 2016, registered at PS FIA Cyber Crime Circle (NR3C), Karachi under Section 37 of Electronic Transactions Ordinance, 2002 read with section 406/420 P.P.C. His earlier bail application in Sessions Case No. 1564 of 2016 was heard and dismissed by the learned Additional Sessions Judge-IV, Karachi-East, vide order dated 24.10.2016.
2. Briefly stated, the facts of the case are that on 26.03.2016 complainant, namely, Muhammad Abeer Azmat lodged the aforesaid F.I.R. stating therein that he was in process of setting up his own business of distribution of imported juices and for this purpose, he was searching on internet for possible parties from whom he could buy juices at good price and during his searching, he came across the advertisement of website “Bolee.com”; from user name ‘dryahyayounus’; hence, he approached the applicant/accused and final rate was
settled between them at Rs. 750/- per PET and he agreed for buying 500 PETs of “Rani Float Can Juice” imported from Dubai amounting to Rs.375,000/- which he paid to him but he failed to deliver the said consignment, even he did not return money of the complainant.
3. The learned counsel for the accused has mainly contended that the accused is innocent and has falsely been implicated in this case by the complainant; that the F.I.R. has been lodged after delay of seven (07) months without furnishing any plausible explanation, which creates serious doubts in veracity of prosecution story; that the question of application of section 36 & 37 of the Electronic Transaction Ordinance, 2002 in this case requires further enquiry, even the alleged offence being punishable up to seven (07) years does not fall within the prohibitory clause of section 497 Cr.P.C.; that the accused is not a previous convict nor he is hardened, desperate or dangerous criminal; that the transaction between the accused and complainant pertains to civil liability as both the parties admittedly have entered into a sale transaction; therefore, the accused is entitled to grant of bail.
4. On the other hand, learned Assistant Attorney General has opposed this application for grant of bail on the ground that the accused defrauded and extorted money from complainant through bank channel by uploading fake advertisement on the internet on the false pretext that he would supply Rani Juice to him. He has further contended that the accused has not only extorted money from complainant but the record reveals that he is a habitual cheater / criminal as he has repeated the crime with other innocent persons including Shahid Iqbal s/o. Zahooruddin, Fazal Abbas s/o. Syed Saqlain Shah, Abdul Rehman s/o. Muhammad Arshad and others; hence, he is not entitled to the concession of bail.
5. I have considered the arguments advanced by the learned counsel for the accused and learned Assistant Attorney General as well as perused the material available on record.
6. It appears that the accused uploaded the advertisement on website “Bolee.com” with user name “dryahyayounus” which attracted to complainant, who was in process of setting up his own business of distribution of imported juices and he made contact with him and paid him an amount of Rs.375,000/- for purchase of 500 PETs (one PET contains 24 cans) by depositing an amount of Rs.250,000/- in his account on 18.08.2015 and another amount of Rs.125,000/- on 19.08.2015 but the accused failed to supply 500 PETs of Rani Juice to complainant. Prima facie sufficient material is available with the prosecution to connect the accused with the alleged offence. It is also a matter of record that the accused has repeated the alleged offence with many other citizens, which shows that he is a habitual criminal and in this regard 161 Cr.P.C. statements of other innocent citizens who have been defrauded by the accused through internet have been recorded by the I.O. during course of investigation, which are available with the prosecution. Although, the alleged offence does not fall within the prohibitory clause of section 497 Cr.P.C. being punishable up to seven (07) years but in such like cases the grant of bail is not right of the accused but a concession and since the accused has repeatedly committed the same offence with other innocent citizens also, he is not entitled for the concession of bail simply for the reason that he has committed such offence which is directly affecting the society particularly it is shaking the trust of business community in transaction through internet. Accordingly, this application for grant of bail is dismissed.
7. Above are the reasons of my short order dated 23.02.2017, whereby the instant criminal bail application was dismissed.
JUDGE
Athar Zai